Divorce in Australia
Do I need a divorce lawyer?
There are many aspects of “divorce”, some of which require a lawyer.
- If you just want to get a divorce (i.e. terminate your marriage), then you don’t necessarily need a lawyer. However, it is helpful to have someone make sure that all your documents are drafted correctly and will not be rejected by the Court. You will also need a lawyer or Justice of the Peace to witness your Affidavit of eFiling for your Application for Divorce.
- If you are entering into a Binding Financial Agreement, then you need a lawyer.
- If you are entering into Consent Orders, then you do not necessarily need a lawyer but usually the documents you file are drafted by lawyers as they are complex and need a lawyer to be drafted properly and in a binding way.
- If you want to negotiate your parenting arrangements and enter into a Parenting Plan, you do not need a lawyer. You don’t need a lawyer to have informal parenting arrangements in place as agreed between you and the other parent. However, you might want a lawyer to advise on strategy and draft the Parenting Plan for you.
How are assets divided in a divorce settlement?
If both parties are amicable, they can come to their own agreement on how they want their property to be divided.
You should formalise the agreement to prevent a further claim on your assets by the other party in the future.
Generally, we recommend that parties formalise their property settlement agreement via Consent Orders. In some cases, we might recommend Consent Orders and/or a Binding Financial Agreement.
If both parties cannot agree on how to divide their assets, then either party can apply to the Court and seek that the Court determine how their assets be divided once you have complied with certain pre-action procedures.
There is no set formula in Australia about how assets will be divided and there is no rule that the assets be split 50/50. Each case turns on its own merits and the Court will take into consideration the following factors:
- Whether it is just and equitable to adjust the party’s property interest (e.g. order one party to give some of their assets to the other);
- The combined value of both party’s assets, liabilities, and financial resources;
- The contributions (financial and non-financial) of both parties; and
- The financial capacity of both parties.
How long must I be separated before I can apply for a divorce?
You will need to be separated for at least one year.
If you are separated but still living under the same roof, you will need to have some evidence, usually one or more affidavits, which explain your living arrangements to the Court. You will also need the other party (e.g. your spouse) or another independent person to sign an affidavit confirming the circumstances.
How long does it take to get divorced in Australia?
It usually takes three to four months from the date of filing your application with the Court for your divorce to be finalised.
Joint applications for divorce can sometimes be quicker.
Can I get divorced in Australia if my husband or wife does not agree?
In Australia, you do not need a “reason” or the agreement of your husband or wife to get divorced.
However, the process is much more straightforward if they agree to apply for divorce with you.
Broadly, there are two ways to apply for divorce:
- Joint Application for Divorce – both of you sign and agree to the divorce;
- Sole Application for Divorce – only you sign and apply for the divorce.
If you apply for a sole Application for Divorce you will need to formally serve your Application for Divorce and other attached documents on your spouse. We generally suggest that our clients use a professional process server for this purpose, and engage one on our client’s behalf for this purpose.
You could also ask a friend or family member to serve your spouse.
You can also serve your spouse via post. However, we only recommend this if you are sure that they will sign the Acknowledgement of Service and send their signed document back to us.
Do I need to attend Court to finalise my Divorce?
Since 2020, divorce hearings have been conducted by telephone.
You will only need to attend the divorce hearing if you are filing a sole application and have children under the age of 18. In some rare circumstances, we may also recommend you attend Court or the Court may require that you attend.
Can I get divorced in Australia if I got married overseas?
You can apply for a divorce in Australia if either you OR your spouse are:
- An Australian citizen;
- Usually live in Australia and have lived in Australia for the last 12 months;
- Regard Australia as your home and intend to live in Australia indefinitely (e.g. if you are an Australian Permanent Resident).
You will need to provide some extra documents proving your right to live in Australia if you were not an Australian citizen by birth. If you are a citizen by grant of citizenship, you will need to provide a copy of your passport or citizenship certificate. If you are a permanent resident, you will need to provide a copy of your passport and visa.
What is the process for divorce in Australia (Checklist)?
Getting divorced in Australia is relatively straightforward, but there are a lot of places where you can go wrong if you do not engage a lawyer who specialises in family law to assist you.
The steps to getting divorced in Australia are:
- Be separated for at least one year – if you have already been separated for at least one year, go to the next step. If you are separated but still living under one roof, you will need to complete an Affidavit setting out the circumstances of your separation. Your spouse OR another independent person will also need to complete an Affidavit;
- Find a copy of your Marriage Certificate – if you don’t have one, you can apply to your local state registry for a copy if you married in Australia. If you married overseas and don’t have a copy you should contact that country’s embassy to ask how you can apply for a copy of your Marriage Certificate.
- Fill out an Application for Divorce – this is form which sets out information about you and your spouse, and if you have any, your children;
- Sign the Application for Divorce in front of a lawyer or justice of the peace – we can witness this for you if you are our client;
- File the Application for Divorce with the Court, and attach your marriage certificate – If you have any, you should also attach any Court Orders or legally binding documents you have with your spouse in relation to property settlement, the children, child support, family violence, spousal maintenance or other family law documents;
- Serve your Sealed Application for Divorce – if you filed your Application as a sole application and not a joint application, you will need to comply with the Rules as to how it is served on your spouse. We can help with this;
- Wait for your hearing date or attend your hearing – this is usually 2-4 months from the date you filed your application. You or your lawyer will find out on the day of your hearing if your divorce was successfully granted;
- Receive your Divorce Orders – you will receive a copy of your Divorce Orders one month and one day from the date of your hearing. This is when you will be “officially divorced” and can remarry if you want to.
How does Modern Divorce work?
- You have separated and you need some help working out a settlement
- You complete our online questionnaire seeking advice about your financial and parenting issues.
- We prepare an advice, tailored to you (not automated or computer generated) about the issues you need to resolve. Timeframe/cost.
- You use the advice to negotiate a settlement with your spouse, either directly or via mediation or similar (we do not assist with this step).
- Once you have an agreement, you complete our online agreement tool telling us about the agreement.
- We prepare the settlement documents that you need to document your agreement/s in a enforceable way, and give you the requisite legal advice for them to be legally binding.
- The settlement documents are sealed and ratified by the Court where necessary.
- Your case is finished with minimum cost, stress and delay.
- You tell your friends how great Modern Divorce is.